The explanations of the HIPAA privacy rules were released on
July 6, 2001. These go into effect April 14, 2003. They are too
numerous and complicated to go into here. I have written a separate Newsletter
published today at
www.medicalaw.net
on this subject detailing what physicians and hospitals will need to do by that date. Top

Nurse Anesthetists

HCFA (now CMS) has published in the Federal Register a rule
to allow states to opt out of the rule requiring nurse anesthetists to work
under the supervision of anesthesiologists. The Governor of each state
with consultation with the state Board of Medicine and Nursing can allow nurse anesthetists
to work without supervision. This will help states with many rural
hospitals. The comment period for this proposed rule is through September
4, 2001. Top

No Pay; No Play

Texas has a new law that takes away licenses of any
professional that does not repay federal or state loans. As of May, 2001
doctors owed $166 million to HEALS, one of several federal loan systems.
Of course when they take away the license they take away any possibility of
repaying the loan, a true lose, lose situation. For informational purposes
student loans are not dischargeable in
bankruptcy.
Top

California Medicaid Rates

California reimburses its physicians less than most other
states. They rank 37th but 42nd when geographic costs were considered. The
pay is about 2/3 of Medicare reimbursement for comparable services. Is is any
wonder that California physicians are not taking these patients and more
hospitals are dropping their contracts. Top

Obeying the Law-a Concern

The GAO reports health care providers are not at fault for
many violations of the Stark and EMTALA laws. The problem is the ambiguity
of the laws. The report states that under EMTALA the providers don't mean
to break the law but the rules are so confusing and enforcement varies depending
on the district. With the Stark Laws, not only are they confusing but
consultants are steering providers to upcode and keep payments not due
them. These reports may hurt the attempted easing of some HHS regulations.

As long as I am on the subject, 13 states have laws allowing providers not to pay
back private (non-Medicare, Medicaid) insurers who have been overpaid a
significant time in the past. These states are Arkansas, California, Florida,
Georgia, Illinois, Indiana, Maryland, Missouri, Nebraska, new York, Oklahoma,
Tennessee and Texas. What's the matter with the rest of you Hospital and
Medical Associations? Lobby, Lobby, Lobby. Top

AMA Loses Another

The AMA has lost the American Board of Obstetrics and
Gynecology. The Board believes the AMA is out of step with women's
issues. This is only a symbolic gesture but should serve as a warning that
their power as an advocate continues to diminish. This is not the first time
this has happened. Other surgical groups have left in the past. The
AMA also was sued for $5 million by it's CEO and it's done during the House of
Delegate's meeting. The House then voted to defer any action on the AMA
Physician Masterfile that is a goldmine for pharmaceutical companies and
generates $23 million a year for the organization. Top

Top Cardiovascular Hospitals

Modern Healthcare has reported on the top 100
cardiovascular hospitals in the U.S. The criteria were mortality and
morbidity rates but only if tied to reduced costs. The hospitals were
across the country but Florida led the way with nine. The problem with
these reports are the usual, not enough information as to what parameters were
used in the
determinations.
Top

Two for One

DaVita, a California based dialysis company, replaced Thomas
Scully on it's Board of Directors. Scully went to Washington to be the
head of CMS under Secretary Thompson. DaVita wasted no time in replacing
him with two prestigious people. They named Nancy-Ann DeParle was HCFA
Administrator and is also a member of the Boards of Triad Hospitals, Guidant
Corp., Cerner Corp., and Specialty Laboratories. All these get a lot of
business from the Feds. DaVita gets about 60% of its business from
Medicare and Medicaid. The other new Board member is William Roper,
M.D. Dr. Roper also was head of HCFA but under the Reagan
administration. He also was the head of CDC under President Bush. He is on
the Board of Luminex. DaVita has all bases or at least both sides of the
aisle covered.
Top

CMS Changes

HCFA has changed more than it's name. CMS has become
more organized. It now has a policy that it will issue rules and
regulations only once a month and will state in advance when those days
are. One of the main reasons for this change is to focus on the amount of
regulations by the agency. When CMS files the Federal Register will be a
lot fatter than usual. CMS also hopes to make the rules more understandable,
which would be a major help.

In other Medicare news the organization will now cover some
preventative services. They had in the past agreed to PSA and
mammograms. Now they are adding glaucoma screening, medical nutrition for
diabetics and those with renal disease along with bone mass measurements, fecal
occult blood q 1 year, flexible sigmoid q 4 years, colonoscopy q 2 year,
coverage for glucose monitors, strips and lancets, mammograms q 1 year, pap and
pelvic q 3 years unless high risk then 1 per year, PSA and DRE q 1 year and Flu
shots once a
year.
Top

Hospital Deregulation

Maryland is attempting to deregulate the method of hospital
reimbursement. If they want to see how smoothly things can go, they need
to look no father than the state that follows them in alphabetical order,
Massachusetts. That state deregulated in 1991and has had nothing but
trouble since. This is not unusual for the People's Republic of Massachusetts.
They now have an underfunded Medicaid system for trying to do something for
everybody. Their hospitals are consolidating due to poor monetary
performance. They force physicians to join the Medicaid market and wonder
why they can not keep a handle on costs. Massachusetts is so self-centered
that it will not reintroduce rate setting but instead will continue to preach
more cost cutting, an impossible task, and begging for more federal and state
government hand outs. Now The People's Republic says that the cigarette tax will
bail out the unfunded mandates. The taxpayers Foundation disputes that
assumption since it is only a one time event and not a long term strategy. When will they ever learn. No one can be everything to
everybody?
Top

Pennsylvania Has New MD Web Site

Pennsylvania has started new Web site regarding
physician licenses. The site will contain information as to whether the
physician is currently under discipline or has been disciplined by the Board of
Medicine in the past. It will not say why the discipline. For that
information a call will be necessary. The State hopes to be able to do
license renewal over site in the future. The site www.LicensePA.state.pa.us
has been criticized by "consumer advocates" as not going far
enough. Florida lists the case number and the amounts of suits and
settlements as well as board certification. Virginia has just passed a bill to
not allow unsubstantiated charges from being posted on its web site. The
site originally was to include all charges against a physician, even those where
he was found innocent after an investigation. The changes await the
Governor's signature. I agree that consumers should get
information but the information should be helpful and not confusing. A
site that tells that a physician has been sued 3 times in 10 years is helpful
but not if it doesn't say what the average amount for the specialty is. No site
should ever put up any hospital or state discipline that is not complete, after
all appeals are
finished. Top

OIG Speaks on Hospital's Insurance Only
Billing

In Advisory Opinion No. 01-7 the OIG discussed a hospital's
use of billing only insurance. The hospital was also bound to a group of
physicians (cardiologists) in private practice. The OIG was not happy if
the hospital or the physician group routinely billed insurance only. They
could bill insurance only if done on an individual basis and for documented
need. The OIG stated that they would not impose sanctions on this hospital if
there were no proof of intent to induce or reward referrals. This is an
opinion based on the facts of this one hospital and may not be used as
precedent.
Top

OxyContin

OxyContin, an excellent pain medication used by terminally
ill patients to ease their discomfort and inappropriately for some lower back
pain, has now become a major addiction problem. This medicine is being
prescribed by unscrupulous physicians and is the target of multiple
pharmacy thefts. In Philadelphia Pennsylvania there have been 40 deaths do date
associated with the drug. Massachusetts has given an official alert to state
pharmacies to be on the lookout for false prescriptions for the drug. Some
stores were planning to stop carrying the drug but the state said that all
pharmacies must carry the drug as they must carry all drugs that are commonly
prescribed, whatever that means. Massachusetts again telling people what
they must or must not do.

There are now several class action suits pending regarding
the making of this medication and the lack of a warning regarding how addictive
it is. These suits so far are in the East and Southeast but I'm sure will
be nationwide shortly. I just received my first complaint this week about a
physician giving the drug
inappropriately.
Top

Interpreters

An article in The Oregonian describes the problem with
non-English speaking patients and how they may be harmed without
interpreters. The paper states that all providers that take federal money,
and I don't know many hospitals or physicians that don't, must provide
interpreters under title VI of the 1964 Civil rights Act that bans
discrimination on national origin. In the federal guidelines passed last
year under an executive order by President Clinton all health care providers who
get any federal money including Medicaid are required to give patients access to
interpreters, signs or brochures that alert patients to their right to free
assistance and a plan for providing medical forms in languages other than
English. This can be a telephone language service. There is now a bill to repeal
Clinton's executive order since the service is to be free and the providers are
not being reimbursed for the service, an unfunded mandate. Oregon
legislators have introduced a bill to certify interpreters which will drive up
the cost of providing the service. This could have the effect of
physicians not seeing any non-English patients, including those on
Medicaid.

In a case Alcade v Deaton SpecialtyHospital in
Maryland District court the estate of a deaf patient won on a violation of
Section 504 of the Rehabilitation Act but lost on a claim for emotional
distress. this case was addressed in a past Legal News. There was no emotional
distress sine there was no malice or reckless disregard
found. Top

Settlements

Humana has agreed to pay about $8 million for allegations of
double-billing. They got paid for patients who were enrolled in both
Medicare and Medicaid as primary payors, an illegal act. Humana was paid
capitation rates for these people on both plans. The repayment will go to
Medicaid since Medicare could have handled the entire payment. Humana
agreed to change its billing procedure so this doe not reoccur.

The Board is proud that it handed out a record 295
disciplinary actions for the past year compared to 163 the year before. Of
these egregious violations 55 of the 295 were ones that only required minor
actions that are now handled by citations. Why are Medical Boards so proud of
their numbers of physicians prosecuted? They should be equally as proud if
none were and there were none that deserved to be.

In related Florida Medical Board news, one of its members, an
emergency room physician is being accused of falsely stating he is board
certified. Dr. Lamelas is board certified but not by an affiliate of the
ABMS. He is certified by an alternative board the Board of Certification
in Emergency Medicine, a private group not certified by the State. He can not be
a member of the ABMS' American Board of Emergency Medicine due to an antiquated
requirement in 1988 that those physicians who wished certification must either
have five years experience in emergency medicine or a three year
residency. This position left some good physicians in a Catch-22 where
they did not have the five years and were not going back to a three year residency.
It was because of that regulation that the alternative Board was
developed. The ABEM is currently being sued by the physicians who were
caught in the cracks to open up the exam to all comers.

In yet more Florida news some Florida physicians are allowing
unlicensed personnel to perform surgery and other work to be done only by
licensed professionals. In a case reported in the Palm Beach Post a
Dr. Guarido was napping while his assistant was performing surgery, fixing a
scar from their last operation. This apparently is not an isolated incident in
unlicensed surgical
suites.
Top

Appeal Rules Delayed

President Bush has delayed rules that govern how patients
appeal health plan decisions. The delay will be for at least 6 months and
maybe up to one year. The new rules would have increased the time for
appeal from the current 60 to 180
days.
Top

Pennsylvania to Spend Tobacco Tax Money

Pennsylvania had agreed on the spending of the one time
cigarette settlement fund of about $11 billion on health related programs.
About 39% will go to pay for health insurance for 60,000 low income and 10,000
disabled working adults. The plan also will pay for more prescription
benefits for seniors. There was no mention if the seniors would need to
meet a needs test or the amount of time the state would pay for the
insurance. Remember the old adage; give a person a fish and feed him for a
day; teach the person to fish and feed him for
life. Top

CA Waives Prostate Cancer Cost

California has provided $10 million for the first year and
$20 million for the next two years for the diagnosis and treatment of prostate
cancer in low income men. The cut-off point is 200% of poverty
level. the treatment will be performed at UCLA, UCD, and UC San
Francisco. This is equivalent to the money spent on breast cancer
treatment.
Top

CMS Expands PET Coverage

CMS has enlarged the paid indications for PET scans.
The indications are now for any single lung lesion, non-small cell carcinoma of
the trachea, bronchus or lung, a malignancy of the rectum, sigmoid or colon,
lymphomas, melanoma, head and neck cancers (excluding thyroid and CNS),
myocardial viability and refractory seizures. Top

DISCLAIMER: Although this article is updated periodically, it reflects the
author's point of view at the time of publication. Nothing in this article
constitutes legal advice. Readers should consult with their own legal counsel
before acting on any of the information presented.